Any suit filed on behalf of a client is going to
generate one of two things — a settlement offer or an answer
followed by discovery. Based upon my 30 years of experience, the
more likely candidate is number two — an answer followed by
discovery from the defense.

Before your attorney files suit and sends it for
service upon the defendant, I recommend sending the client the
following discovery requests indicating that the defense is likely
to send similar documents after an answer has been filed. The client
should be instructed to answer each and every question as carefully
as possible, and then the legal team can discuss the client’s
answers.

In most cases, the plaintiff’s attorneys file suit,
receive discovery from the defense counsel, beg for extensions and
then discover information that is detrimental to the plaintiff’s
case. Such potential problems include a pre-existing injury or
condition, a prior insurance or workers’ compensation claim, a
liability problem, a witness problem, or any number of negative
factors that could damage or even destroy the case completely.

I have found that most clients either neglect or
intentionally refuse to disclose damaging information while the
claim is in progress and before suit is filed. Then, after suit is
filed and discovery begins, ugly moles and warts appear where there
once was a picture without blemish. Defense attorneys know this and
so do insurance carriers. They are well aware that either your legal
team, your client or both might have failed to disclose damaging
information that will benefit the defense during the processing of
the claim.

This is why insurance carriers often offer
nominal settlements in cases with fairly high medical bills. They
realize that with formal discovery, it’s quite possible, in fact,
probable, that the defense attorney will find problems in current
and past medical records. Insurance carriers and defense attorneys
also know that clients, and sometimes their attorneys, will not send
damaging medical information, such as a report indicating a prior
condition or prior injury. Therefore, they will request all medical
records from every source and every provider that has treated the
client within a certain period, usually 10 or more years.
Furthermore, with interrogatories, they will be able to ascertain
just how strong your attorney’s liability case is by asking your
team to divulge witnesses, photographs, theories of liability and
other useful information that could assist the defense in damaging
the case.

The bottom line is this: Discovery by the
defense almost always does something to damage or limit the success
of the case, which is why I recommend sending clients discovery
ahead of time. The discovery requests can be given to the client at
several different stages of the case and the legal team can decide
the time that would be best for each case.

During settlement. Show the discovery forms to
the client during settlement discussions to let the client know just
what kind of information the defense will be able to obtain during
the discovery period and before trial.

Before suit is filed.
Send the discovery forms
to the client while the case is being processed to make sure that
your team has all of the information, including damaging
information, necessary to evaluate and settle the case before suit
is filed.

As soon as suit is filed.
Send the discovery
forms to the client at the time the suit is filed so that answers
can be prepared during the appropriate time frame for responding to
the defense’s discovery. Sending these to the client before your
team receives them will avoid having to ask for extensions.

Use the interrogatories and requests for
production discussed in this article in any case your team might
handle on behalf of a client who has been sued for personal injury
and who might not be insured, or on behalf of an insurance company
that might ask your team to represent a client in a case.

It’s important to realize that defense lawyers
expect discovery requests to be taken seriously. If your team tries
to “blow them off” with cute responses that are really
nonresponsive, count on a Motion to Compel with appropriate requests
for sanctions.

Judges almost always will require a valid
response to virtually all of the interrogatories and production
requests that are contained in this article. Prior medical records
from the client are absolutely fertile and fair ground for
discovery. It’s virtually impossible to hide a previous injury, a
pre-existing condition or other damaging medical information.
Defense attorneys have been through this situation hundreds of times
and know what to do if they believe your team is trying to hide
information.

Checklists for Handling Major Case Weaknesses

When your team and the insurance company have
significantly different opinions of the settlement value of the
case, it’s wise to reconsider the major weaknesses of the case
before filing suit. Some of these weaknesses can be alleviated
before filing or can be minimized during the pretrial period. The
goal is to eliminate the problems, lessen their potential effect at
trial, or recognize that the problems can have a substantial impact
on the ultimate settlement value or jury verdict. In any event,
these weaknesses should be discussed in detail with the client
before filing suit.

Checklist for Dealing With Pre-Existing
Injuries or ­Pre-Existing Conditions [§512.1.2]. In my opinion the
most significant weakness or problem in a small- to medium-valued
case is a preexisting injury involving the same area of the body. If
the client’s injury preexisted the subject incident, the legal team
has the difficult burden of establishing the extent of any
aggravation and its causal relationship to the incident. In 20 years
of practice in personal injury law, I find this to be the most
often-used attack by insurance adjusters. On the other hand, if the
client had a preexisting injury and recovered from that injury, your
team must establish that a whole new injury took place and that it
was caused by the subject incident. Again, the burden is quite
difficult.

Checklist for Dealing With Subsequent Injuries
to Other Parts of the Body [§512.3.1]. This problem is similar to
the one raised above regarding injuries to the same parts of the
body. The defense attorney will try to establish that the later
incident, not related to the lawsuit, must have aggravated the
present injuries. The goal of the defense is to obtain an
instruction from the judge regarding a nonrelated intervening event,
which could result in a closed-end period of responsibility.

Checklist for Dealing With Alcohol Consumption
[§512.4.1]. Alcohol use by the client can be extremely damaging if
the alcohol consumption is relevant to the issue of liability. If
the case is a premises liability case, such as a slip-and-fall,
consumption alcohol by the client is a major problem. If the client
was the driver in an automobile collision and consumed alcohol
before the incident, that fact can be fatal to a favorable
settlement or jury verdict. Another problem occurs when an
intoxicated passenger rides with a drunk driver who causes a
single-car crash. In such cases, settlement often is impeded by the
passenger’s alcohol consumption.

Checklist for Dealing With Prior Criminal
Record [§512.6.1]. Evidence of a prior criminal record can have a
major impact on the jury. Crimes involving dishonesty usually are
legitimate impeachment evidence. Check your state’s rules of
evidence to see if they follow the Federal Rules of Evidence, which
allow for the introduction of former crimes for impeachment
purposes. Also see rule 609 of the Federal Rules of Evidence.

A Lesson Learned

A number of years ago, we represented a gentleman
who had sustained a rotator cuff injury after falling from the porch
of a home that he rented with his family. We tried to settle the
case with the insurance carrier, who offered only a nominal
settlement. Suit was filed and defense counsel engaged in aggressive
discovery, including depositions, interrogatories and requests for
production of documents similar to the ones listed at the beginning
of this article. One of the primary questions from defense counsel
was whether or not the plaintiff ever had sustained a prior injury
or treatment to the subject shoulder. The plaintiff denied any
former injury or treatment. It’s important to note that both he and
his wife were excellent record keepers and had excellent memories of
events in their lives.

We completely believed our client when he told
us that he never had a prior injury to the subject shoulder. We made
it very clear to him that even if he had a prior injury to the
shoulder, the fall from the porch caused a new injury and would,
therefore, be compensable. In other words, we told him it would not
benefit him to try to hide a prior shoulder injury. The client
continued to deny any prior treatment or injury even though he had
been an avid tennis player and an avid trombone player.

Defense counsel went through the medical records
very carefully and discovered eight physical therapy sessions for
treating the same shoulder five years prior to the subject injury.
This information was devastating. Our client had, both verbally and
in his interrogatories, denied any prior treatment whatsoever. The
result was that we settled the case for pennies on the dollar
because we knew a jury would doubt the testimony from this
plaintiff.

The moral is your team absolutely must know
about the weaknesses in the case before blindly jumping into
litigation. Discovery documents similar to the ones discussed in
this article are likely to be sent to your attorney within weeks or
even days.